Gordanna Clevenger

—

            Will the death of J50 (Scarlett), an orca in the southern resident population, be in vain or will efforts to save the southern resident orca population succeed? The Puget Sound’s southern resident population has reached an alarming all-time low.[1]Three pods make up the population: J, K, and L.[2]The southern resident’s range is wide with pods travelling to the San Juan Islands during the summer months and the inland waterways of the Puget Sound in the fall.[3]The use of ferries and tourism took off on the Puget Sound.[4]This increased human activity on the Puget Sound has drastically depleted the southern resident population and their food source.[5]

            Recognizing a need, professionals in the field came together to form The Whale Sanctuary Project.[6]The Whale Sanctuary Project is planning the first seaside sanctuary; the sanctuary will also include rescue and rehabilitation component.[7]However, this organization faces many challenges complete the project.[8]These obstacles, analyzed in turn, include the designated critical habitat of the Puget Sound,[9]the taking of southern resident orcas,[10]and permitting issues.[11]

            This Note will discuss the issues surrounding the creation of a whale sanctuary that includes rescue and rehabilitation. Part I will discuss the history of orcas in the Puget Sound and the Whale Sanctuary Project. Part II will discuss the purpose of the Marine Sanctuaries Act and the requirements to create a sanctuary. This section will discuss the permits needed under the National Marine Sanctuaries Act , the Whale Sanctuary Project’s site candidates, and the benefits the National Marine Sanctuaries Act offers. Part III will discuss limits under the Endangered Species Act. This section will include the listing of the Southern Resident orca and the issues regarding the Puget Sound as a designated critical habitat. Part IV will discuss limits under the Marine Mammal Protection Act, specifically takings. Finally, Part V will briefly mention coastal issues such as the Coastal Zone Management Act and Washington State laws applicable to the state’s Coastal Management Project.

 

[1]Allyson Chiu, ‘What Extinction Looks Like’: A Young Orca’s Presumed Death Cuts Endangered Whale Population to 74, Wash. Post (Sept. 14, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/09/14/what-extinction-looks-like-a-young-orcas-presumed-death-cuts-endangered-whale-population-to-74/?noredirect=on&utm_term=.0369daea424b.

[2]Sandra Pollard,Puget Sound Whales for Sale: The Fight to End Orca Hunting22 (2014).

[3]Id. at 24.

[4]See generally Linda Larson & Jessica Ferrell, Orcinus Oncorhynchus: Will Saving Puget Sound Orcas and Salmon Save an Ecosystem?, 22 Nat. Res. & Env’t 26, 27 (2007) (listing the human activities that have negatively impacted the Southern Resident population: inadequate prey availability, pollution and contaminants, and the effects of vessels and sound).

[5]Id.

[6]History of the Whale Sanctuary Project, Whale Sanctuary Project, https://whalesanctuaryproject.org/history-whale-sanctuary-project/ (last visited Nov. 7, 2018).

[7]See About the Whale Sanctuary Project, Whale Sanctuary Project, https://whalesanctuaryproject.org/our-work/ (last visited Nov. 7, 2018) (“The mission of the Whale Sanctuary Project is to establish a model seaside sanctuary where whales and dolphins can be rehabilitated or can live permanently in an environment that maximizes well-being and autonomy and is as close as possible to their natural habitat.”).

[8]Concept Image of Seaside Sanctuary, Whale Sanctuary Project (Apr. 12, 2018), https://whalesanctuaryproject.org/concept-image-of-seaside-sanctuary/.

[9]50 C.F.R. § 226.206 (2006); 71 Fed. Reg. 69,903 (Nov. 18, 2005) (designating 2,500 square miles, covering all of the Puget Sound, as critical habit for the Southern Residents).

[10]Marine Mammal Protection Act of 1972, Pub. L. No. 92-522, 86 Stat. 1027 (1972) (codified at 16 U.S.C. §§ 1361–1407 (2000)).

[11]16 U.S.C. 1371 § 101.